$25M deal in Vandenberg case revived

Update: In December 2016, Circuit Judge James N. O’Hara vacated Circuit Judge Daniel Joseph Lynch’s orders and reinstated the original $25 million settlement after he found the defense had knowledge of all material facts when it settled with the plaintiffs in June 2015. The defense has vowed to appeal. For details, read our latest reporting on this case.

Cook County Circuit Judge James N. O’Hara today reinstated a $25 million settlement two plaintiffs entered into last year with the defendant while their trial jury was deliberating.

The settlement between plaintiffs Scot and Patricia Vandenberg and defendants Brunswick Corp. and Brunswick Boat Group was vacated in January by Circuit Judge Daniel Joseph Lynch.

He found that former court Clerk Tatiana Agee interfered with due process by divulging the existence and contents of a jury note to the plaintiffs’ trial counsel Mark E. McNabola and unilaterally creating a 27-minute delay in also notifying defense counsel John W. Patton Jr. of Patton & Ryan LLC.

In his January ruling, Lynch also held that McNabola’s silence about the note in the minutes before the case settled had an impact on the litigation’s outcome. Lynch entered judgment in May on a defense verdict the jury issued within minutes of the parties answering the note and putting the deal on the record in trial judge Elizabeth M. Budzinski’s chambers.

But in his three-page ruling, O’Hara found that all parties were represented through counsel in Budzinski’s chambers when the jury’s note was published. At that time, he held, “[a]ll parties had the opportunity to participate in a discussion as to how to respond to the note.”

Instead, O’Hara found, the parties continued to enter the settlement into the record after Budzinski responded to the jury’s note. The note inquired whether it could assign all of the case’s liability to “empty-chair” defendant RQM LLC which was required to remain on the verdict form despite settling before the two-week trial last June.

“The parties freely settled this case after full disclosure of all material information concerning the content and time of publishing the jury note,” O’Hara wrote. “At no point did the [d]efendants, through counsels, object to or question the validity of the settlement after learning of the content of the jury question contained in the note or the time it had come out prior to the settlement’s entry into the record.”

Through that conduct, O’Hara ruled, Brunswick “manifested a consistent intention and willingness” to dismiss the case by agreeing and entering the settlement into the record.

After the hearing, Joseph A. Power Jr. — a partner at Power Rogers & Smith LLP who joined the case as the Vandenbergs’ counsel with Kralovec, Jambois & Schwartz partner John B. Kralovec in March — said “the rule of law has been restored.”

“As we argued, at the end of the day, when AIG, Brunswick and Mr. Patton learned that they could have won the case, they displayed sour grapes and sought to vacate the settlement and oddly enter a verdict for the defendant instead of going out and having a beer to console themselves,” he said. “They tried to harm the plaintiffs and take away their settlement. Fortunately, Judge O’Hara followed the law and reinstated the settlement for the Vandenbergs.”

Dan K. Webb, chairman and partner at Winston & Strawn LLP who had represented Brunswick through the case’s 18 months of post-trial proceedings, said he and his clients are disappointed in O’Hara’s ruling.

“We don’t believe that the extensive factual record that has been made from a year in this case is supported by the decision by the judge today, and so we are going to take an appeal to the Illinois Appellate Court,” he said. “I think everyone expected this case to end up in the Illinois Appellate Court; it’s being watched carefully here in Illinois.”

However, Webb said the full basis of Brunswick’s impending appeal is too premature to discuss.

“See, in the opinion today, the judge entered a ruling based on one ground only, which is that Brunswick had knowledge of all material facts at the time they settled when, in fact, the record is clear that we didn’t have any facts,” he said. “We didn’t know anything about any of the fraudulent conduct that occurred. Zero.”

Webb also highlighted that he took the case to federal court in a lawsuit he filed Friday.

Among other things, that 13-count lawsuit alleges a due process violation against Agee; conspiracy to deny due process against McNabola and Agee; and negligence, civil fraud and civil conspiracy against Agee, McNabola and McNabola’s firm. It has been assigned to U.S. District Judge Manish S. Shah.

“The constitutional violations that occurred in this case have a right to be litigated in federal court,” Webb said. “At the same time, we are going to continue to pursue vigorously the appeal here.”

The Vandenbergs sued the Brunswick entities after a 2009 yacht accident left Scot paralyzed from the neck down. They accepted the $25 million settlement after a two-week trial before Budzinski last June.

With O’Hara’s ruling coming a year-and-a-half after the Vandenbergs initially accepted the settlement, Kralovec said “the right thing happened to an innocent plaintiff who had nothing to do with what took place following the jury’s note.”

“They are innocents who knew nothing of the activities that took place,” he said. “Judge O’Hara has done the right thing.”